Thirdly, Where a contract may be implied.

If a person, hired for less than a year, serve for

three years, a contract for a year may be inferred.

shall be absent from their work, it shall be proportionably deducted from their wages. The present agreement to remain in full force for three years. And for the performance of this agreement, J. J. and J. L. bind themselves and their executors in the penalty of 100l." (The instrument was signed and sealed by the respective parties, but was not stamped.) The pauper served Messrs. D. & Co. during the time stated, and continued on in their service for four years more without any thing further being said as to wages, and without any express engagement as to the time or conditions of such service. The sessions being of opinion that a hiring might be presumed, confirmed the order. Lord Ellenborough, C. J. The fact of the service is always capable of distinct proof, for it is collateral, and subsequent to the contract itself. The pauper served, that is a fact to be proved by parol evidence; he served T. and W. Douglas at Pendleton, that also is proved by the fact; he served them there during three years, which is a shorter way of expressing that which the sessions meant to find as to the time of the service, by referring to the time mentioned in the instrument; and he afterwards continued to serve them for four years longer; he served without any thing being said as to wages. The stress of the argument seems rather to shew, that there were no certain wages reserved, and that there was no hiring for a year, for if there were only a general hiring, the law presumes that it is for a year, and if the rate of wages were not specified, he would be entitled to reasonable wages. Then were not the sessions warranted from the fact of a service of four years at wages, though not specified, to presume that it was under a hiring for a year? the law says, that they may make such a presumption when there is nothing to repel it, and that makes an end of the case.-Le Blanc, J. For any thing which appears to us, the sessions received the evidence of the written instrument without objection made to it at the time; for if they meant to state the question reserved by them, to be whether that evidence was properly received, they would have stated that that objection was taken to it, and asked the advice of the Court on its admissibility. But as far as we can see, the evidence was received without objection, and the facts stated in the instrument are joined on with the other evidence, which, without reference to the instrument, would probably have been stated more fully, and the pauper would then probably have proved that he had served, in fact, for four years after the expiration of the articles, having before served for three years under them, and received wages at the rate of so much a week during that time; and then the sessions would have sent to us to know whether they could, from that evidence, putting the written instrument quite out of the question, have presumed a hiring for a year. And how can we say that they could not so presume? Bayley, J.It has been argued here, that inasmuch as the pauper served for some part of the time, at least, under a written instrument unstamped, we cannot look at the instrument even to see for what time it enured, and that no parol evidence could be given of any contract with reference to the subject matter of it. But though we cannot look at the unstamped instrument for the purpose of proving by it any agreement between the parties, for such is the general import of the stamp acts, yet the Court may look at it to see whether it applies to other evidence of a contract between them; as if a contract in writing be made, not stamped, for the sale and delivery of certain goods, on certain terms, the Court, in an action for the non-delivery of goods upon a contract proved by parol evidence only, may look at the instrument to see whether it applies to the goods then sought to be recovered for; and if those goods were not included in the contract, parol evidence may be received of the contract sought to be recovered upon. So here, the Court might look at the instrument to see the duration of the first contract under it, in order to guide them in receiving parol evidence of the subsequent service to which it did not apply.-Orders confirmed.

Rex v. Long Whatton, 5 T. R. 447; 1 Nol. P. L. 345, 364. The pauper (a lunatic at the time of removal) went in March to live at Diseworth with Mrs. Lowdham, to wait upon Mr. L., who was poorly. She continued there till the death of Mrs. L., which happened two or three years after. She was seen during that time constantly acting as the servant of Mrs. L. On her

first going to Diseworth the pauper had told her brother-in-law that she was hired till the following Michaelmas, with liberty to part on a month's wages or a month's warning. At another time she said, on being asked, that she belonged to Diseworth, where she had been hired, and had received 2s. 6d. earnest, but never mentioned any second hiring. These declarations were objected to; but the sessions received them, and were of opinion, upon the whole evidence, as well those declarations as the rest, that she gained a settlement at D.-And per Lord Kenyon, C. J. Independently of the declarations of the pauper, there was sufficient evidence to warrant the justices in finding a hiring for a year in D. Though the pauper were at first hired only till the Michaelmas following, yet she continued in the same service for three years.

Rer v. St. Martin's, Leicester, 8 B. & C. 674. Case stated, That the pauper, being then about 14 years old, went with his father to the house of one Neale, an inn-keeper, in the parish of St. Martin, and informed N. that he heard he wanted a lad. N. answered," he had got one coming in a fortnight, but that the pauper might stay for that fortnight, till the other lad came." The pauper was to fill the situation of boots and tap boy, and had his board and vails. At the end of the fortnight the other boy came, but was not hired, and the pauper continued in the service (without any thing following between him and Ñ.) for three years and a quarter, when he went and engaged with another master without consulting N., and removed the following day; N. telling him "that if it was his mind to go he believed he must." The sessions found this to be an implied hiring.—Bayley, J., said, he thought that the justices were warranted in coming to this conclusion. If N. had said no more than that the boy should have board, lodging, and vails, the law would have implied a general hiring; but he assigns a reason why he could not engage him for more than a fortnight. At the end of that time the pauper continued in N.'s service. The question then for the justices was, whether the relation of master and servant was created between them, and for what time; that depended on the understanding existing in the mind of the parties at the time. Both parties understood that the relation of master and servant was created for a fortnight in the first instance. If the justices thought that the master refused to take the pauper for a year, only because he expected another boy, and they might, as that boy was not finally hired, taking into consideration the conversation between the pauper and master and the subsequent service, presume a contract for a year; they might, most properly, have so presumed, if nothing had been said in the first instance of another boy coming in a fortnight. If the conversation, omitting all mention of another person being expected, coupled with the subsequent service, would have been sufficient to raise a presumption of yearly hiring, the justices might think, that as the expected person was not hired, both parties intended the relation of master and servant to continue for that period. Rex v. Pendleton (15 East, 449) is in point.-Littledale, J., said, he should have drawn a different conclusion from the facts; but he thought the decision of the justices ought not to be disturbed.—Parke, J., concurred. Order of sessions confirmed.

Rex v. Sow, 1 B. & A. 178. Order of removal from Coundon to Sow, confirmed, &c. Case: The pauper was hired in November, 1812, by the wife of Mr. Deeming, of Sow, for a year, at 50s. wages, and what clothes Mrs. D. pleased. Previously to this hiring, the pauper, who is a natural daughter of Mr. D., lived with her mother at Kearsley, and the hiring was for the purpose of gaining a settlement in Sow. As soon as she was hired, she went into the service of Mr. D., served him for a year, and continued to live with him until the month of July, 1816, when she went away; during the whole of which time she did the household work, as she did during the first year, but no conversation took place between the parties about hiring after she was hired in November, 1812, and there was no second hiring, unless from continuance in the service of Mr. D., a hiring ought to be implied, which in the opinion of the sessions it ought not. Some months after the expiration of the first twelve months, Mr. D. gave the pauper 51., 50s. thereof for the first year's wages, and desired her to keep the remaining 50s.

Thirdly, Where a contract may be implied.

When a hiring

may be implied

from service.

Female natural child hired by the ed father.

wife of its reput.

Thirdly, Where

a contract may be implied.

Fourthly,

Where the contract is indefinite.

A general hiring,

and no time mentioned, implies a hiring for a year. Hiring to serve

and say nothing about it. The pauper never afterwards received any sum on account of wages, but received at different times clothes and pocketmoney. Mr. D., at Lady-day, 1816, removed with his family to Coundon: the pauper removed with them, and continued to live with them there till the month of July. There was no fraud in this case.-Lord Ellenborough. I cannot set the sessions more right than they have set themselves. The pauper was hired for a year, and 50s. were paid her; that was paid with another sum, and there is no question that the one sum was paid as wages and the other as bounty; it is true the service continued the same, but there was not any hiring for the second or any subsequent year.—Bayley, J., said, I think the sessions have done perfectly right; where the parties are not related, it may fairly be presumed from a continuance in the service, that the terms in which they continue are the same as during the preceding year. But where the relations of father and child subsists, the ground for that presumption fails, and here there are a variety of circumstances to shew that there was not any new hiring. The parties lived during the second year upon different terms from what they lived during the first-Abbott, J., thought the sessions right, inasmuch as after the first year the pauper was living as a child with her parent, and not as a servant with her master. Order confirmed.

A child may, however, be hired as a servant by a parent. In Rex v. Chillesford, (ante, p. 327), there was an express contract, and Lord Tenterden observed, That one mode of ascertaining whether it was a contract for service was to consider if the father had any occupation for a hired servant, and if he had no employment for his son as a servant, the sessions may fairly conclude that there was no contract of hiring. See Rex v. Chertsey, where the contract was express.

Fourthly, Where the Contract is indefinite, (a)

Where the relation of master and servant has existed in such a manner, that a hiring for a year may have been entered into between them, the law will adopt such an inference unless it can be rebutted by opposing evidence. The stipulations, therefore, as to time, or wages, may justify the conclusion of a yearly hiring, although they do not expressly include that period.

Rex v. Wincaunton, Burr. S. C. 299; 2 Bott, 289; 1 Nol. P. L. 367. The pauper offered to serve S. Williams, of Charleton Horethorne; who hired him to serve him in husbandry, and agreed to give him meat, drink, washing, lodging, and clothes, when wanted; but no particular time was in husbandry (b). agreed on, and the pauper apprehended his master might have been off, or he might have gone away from him, at their pleasure; nevertheless, there was no agreement for that purpose. The boy continued and served him in Charleton Horethorne two years and a half.-By the Court: He gained a settlement there by this service. A general hiring is a hiring for a year. And here are no circumstances in this case to shew an intention to the contrary, or to vary it from the general rule. The mere apprehension of the pauper doth not do it. [See Rex v. Weyhill, ante, p. 331.]

Telling a person

to go into the

place of one who

Rex v. Berwick St. John, Burr. S. C. 502; 2 Bott, 290; 1 Nol. P. L. 366. The pauper met Mr. Jones, head-keeper of Rushmore Lodge in had been a yearly Berwick St. John, who had then lately parted with one E. Hill, who had been for many years one of his servants, or under-keepers, at the wages of 31. a year, and a keeper's livery, besides meat, drink, and lodging. Jones said to the pauper, "Do you like the life of a keeper?"

servant, is

ground to imply

a hiring for a

year.

(a) See division of the subject, ante,

319.

(b) In Rex v. Tyrley, 4 B. & A. 624. Where the pauper hired himself for 81., and no time specified. He entered the service the day before New Year's Day,

and left it two days after Christmas Day. The session found this to be a general hiring.-Abbott, C. J., said, the Court were bound by this finding, but that he should have come to a different conclusion.

Which being answered in the affirmative, he said, "Then go into Ned Hill's place, and you shall want no encouragement." Accordingly, he went, and continued in the service for three years, and received three years' wages.-By Lord Mansfield, C. J. This man served three years, and received wages accordingly. But it is objected, that he was never hired at all. It is admitted, that if he were hired at all, it would by law be a hiring for a year. And upon the state of this conversation, it is a clear hiring; for Hill was a hired servant. The Court, therefore, adjudged that the pauper thereby gained a settlement.

Rex v. Stockbridge, Burr. S. C. 759; 2 Bott, 294; 1 Nol. P. L. 363. The pauper asked Michael Nicholas if he wanted a boot-catcher and driver; and N. said, yes; the pauper replied he was willing to serve him; and N. bid him " go into the yard and look after the horses;" nothing else passed, and no term was mentioned. He went into the service, and continued in it for one year; and was found by his master in meat, drink, and lodging, but received no wages. He was afterwards hired to J. Watts, of Basingstoke, "to be a chaise-driver," but no term was mentioned. He served him for a year there, being found by him in meat, drink, and lodging, but received no wages. He thought himself at liberty to leave either of these masters whenever he pleased. It was proved that the customary manner of engaging chaise-drivers is as the pauper stated; and that the masters and drivers think themselves at liberty to part whenever they please. Lord Mansfield was absent. The other three judges were of opinion, that this was a sufficient hiring for a year. "A general indefinite hiring is a hiring for a year, unless something appears that may raise a presumption to the contrary." And nothing is here stated which limits the hiring, or shews that it was meant to be for less than a year.

Rex v. Seaton & Beer, 2 Bott, 297; Cald. 440. S. Ponsford, who kept a public-house at Broadclift, agreed with the pauper that he, Ponsford, should give him, the pauper, one shilling a-week, as he had given the other man or men, and the vails of the stables. Nothing was said about time. At the end of the year, his mistress said to him, "You have been here a year, I will pay you." To which the pauper answered, "It is no matter, I may stay with you another year." She said, "Very well, Sampson." He did stay another year, and then received what was due to him, being 57. 4s.; he worked in the stables as an ostler, and neither at the time of making the first agreement, nor at the end of the first year, was any mention made, either by the mistress or the pauper, of a hiring for a year, or of the term for which he was to serve; but the pauper apprehended that his master might have parted with him at any time, on giving reasonable notice. No evidence was given of the time for which any such man or men, as above referred to, had been at any time hired by Ponsford.-Willes, J. The first agreement was general, but the pauper was to receive wages like a former servant. I think the conversation at the end of the year was an agreement to serve another year, which makes it even stronger than the case of a general hiring. The case of Rex v. Stockbridge (supra) is decisive of the present question.-Ashhurst, J. I am not for narrowing the determinations in favour of settlements; and this does not go so far as some other cases. The general rule is, that an indefinite hiring, without any circumstances to shew that a less time was meant, shall be considered as a hiring for a year. In this case, the first conversation would amount to an indefinite hiring; the second seems to shew, that it was in the mind of both, that it should be a hiring for a year. There are cases where it has been so held against the apprehension of both.Buller, J. It is settled in a variety of cases, that the apprehension of the pauper makes no difference.

Rex v. Bath Easton, Burr. S. C. 823; 2 Bott, 296; 1 Nol. P. L. 342, 365. The pauper was hired to John Giles, in Devizes, to serve him as a journeyman barber, who was to give him meat, drink, and lodging. In lieu of wages he was to have the Christmas boxes. No time was mentioned. Upon these terms the pauper lived with Giles four years, but thought himself at liberty to leave his master when he thought proper. Afterwards, he was hired to J. Bedford, an innkeeper at Mangotsfield," to serve him in his

Fourthly, Where the contract is indefinite.

Where no mention is made of time or of wages, and the service is for a year, a hiring is presumed.

An indefinite hiring is to be coning for a year, and the appre

sidered as a hir

hension of the master and ser

vant makes no

difference.

A hiring, without any stipulation as as to meat, &c., and service for three years, a will be implied.

to time, but only

hiring for a year

Fourthly, Where the contract is indefinite.

Where the pauper agree to live with

was to receive

clothes, &c., but no time was mentioned, and she remained two

years and a half, going away in the middle of a year, a yearly hiring was presumed.

stable;" who was to find him meat, drink, washing, and lodging, but no wages, other than what he should receive as perquisites of the stable; no time was mentioned, and he apprehended that his master might have turned him off, or he might have gone away from him, at their pleasure. (a) From the time that the pauper began to serve Bedford, to the time at which he left him, was sixteen years. During which time he left Bedford several times at his pleasure. But from the time of his first going into the service, he was with Bedford two years and upwards without leaving him at all; and at the end of the sixteen years, he was with him for three years together without interruption. And this was admitted without argument to be a settlement at Mangotsfield.

Rex v. Worfield, 5 T. R. 536; 1 Nol. P. L. 342, 363, 364. The one as nurse, and pauper went to live with A. Smith, in Bridgenorth, and served him near a year, but was not hired to him as she knows of. While she lived with Smith, J. Jones met her, and taking her to his house, asked her if she were hired again to Smith? She answered, that she was not. Jones then asked her, "if she would come and live with himand take care of his child?" To which she consented, and soon after she went to him. A few days after she had been with Jones, he told her he would find her meat, drink, and clothes, and asked if she would be satisfied with that? She told him she should. He said he would have given her money, but that it was better for her to have clothes, as she was connected with bad friends, who would take her money. She went to Jones at Christmas, and lived with him about two years and a half, leaving him in May, when her mistress told her that her child was then old enough not to require any further attendance, and dismissed her. She said, in her own opinion she was at liberty to have left Jones at any time.-Lord Kenyon, C. J. It has been so long settled that a general hiring is a hiring for a year, that it ought not now to be controverted. In my opinion, the hiring in this case was a hiring for a year; the circumstance of the pauper's going away in the middle of a year, does (as to this, see Rex v. Newton Toney,) not shew that this hiring was not of such a description; for it was competent to both parties to put an end to the contract whenever they pleased, and here they did dissolve it in the middle of the year. It is much to be wished that in cases of this kind the justices at the sessions would draw the conclusion, and state it as a fact, whether or not there was a hiring for a year. —Ashurst, J., said, "the pauper was to be provided with clothes in lieu of wages; if the master had clothed her the day after she entered the service, could it have been the intention of the parties that she might have left the service immediately? if not the next day, what other line can be drawn. This shews that both parties meant that the service should be permanent, and that the pauper could not leave the service when she pleased." The other judges concurred.

Hiring for eleven months, and then

on an end gives a settlement, as the

latter is an indefinite hiring.

Rex v. Macclesfield, 3 T. R. 76; 1 Nol. P. L. 344, 364. The pauper being settled in Wildboarclough, was hired by F. Berwick, of Macclesfield, button-maker, for eleven months, at ten guineas' wages; at the end thereof, he and his master settled his wages for eleven months, and his master gave him a half-guinea over, saying, that he had been a good servant, and added, " You may as well stay on an end in your place; the place suits you, and you suit the place." The pauper's answer was, 'Very well, sir, I have no objection." And he continued to follow his master's business near three years. The pauper being at Birmingham with his master's cart, was taken ill, and stayed there some time, which occasioned him to lose his service. His master used to give him money occasionally during his service, but the pauper kept no account himself. A few days after his return from Birmingham his master settled with him; he did not know in what manner, but supposed the money was right, and thought his wages would come to about four shillings a-week.

(a) In many of the early cases the apprehension of the master and servant as to the legal effect of the contract, is

stated, but it is now settled that can make no difference; see Rer v. Seaton, ante, 339.